Tort of Negligence
The word â€œtortâ€ is derived from the French word meaning â€œwrongâ€. A tort in the modern law refers to an approach which is a civil wrong. The tort of Negligence protects person, assets and financial interest from damage caused by a person not taking reasonable care. Application of Law 1.
In the first question, Barack has failed to take all necessary steps while selling the ladder to Alfonse son of Theo-Paul. So this makes the case for tort of negligence. Theo-Paul, who is injured after using the ladder according to the instructions given, has to prove the following crucial fundamentals. a.
A Duty of care b.
A breach of the duty of care c.
Damages in order to make Barack liable for trot of negligence. We keep aside the amount of Damages as of now. â€˜A Duty of Careâ€™ is the duty owed by one person to another because of the relationship between them which might cause injury. â€˜Dutyâ€™ in this condition is a responsibility, accepted by law, to obey the rules to a particular model of conduct for the safety of others against unreasonable risk. The first stage was to ascertain whether there was adequate relationship of neighbourhood or proximity between the claimant Barack& Theo-Paul. The neighbour principle is the spine of duty of care, but in the following years the courts have developed more difficult tests. Modern Law of Torts was laid down by Justice Atkins in the most famous case of Donoghue v Stevenson in 1932
. (Latimer, 2014, p. 227)The case raised a distress about the consumers rightâ€™s to claim related to the damage caused by the use of the product.The judgment of this case puts the additional responsibility on the manufacturer of any product that needs out of the ordinary care. A duty of care was establish to be owed by a producer to an end-user, for carelessness in the manufacturing of his goods. Here Barack has failed as a supplier to take the additional responsibility before selling to Alfonse. We can determine this case makes Negligence a key area of Torts. The second issue the courts will take into account to ascertain negligence is breach of duty. This is normally known as the â€˜reasonable man' test, and simply asks whether the Barack has done something a sensible person would not have done, or failed to do something that a sensible person would not have. The court will decide if there is a breach, it will look at the probability of harm, in Bolton v Stone 1951 UKHL 2
(Latimer, 2014, p. 248) the court decided in this case, that the risk of someone getting hurt on the road was so little. The seriousness of harm (Paris v Stepney Borough Council 1950 UKHL 3) (Latimer, 2014, p. 248)
the court decided that Stepney Borough Council was conscious of his unusual conditions and failed in theirduty of care
to give him protecting goggles and steps to avoid the risk of harm (Latimer v AEC Ltd)
, the court dismissed the appeal of Latimer as he could not prove that a reasonable employer could shut the factory because of the risks involved in working were very high in given the circumstances. Lastly, In order to succeed normally in an action for negligence the Theo-Paul must satisfy the rules of causation. Causation is bothered with whether, as a matter of truth, the breach caused the damage. It is called as â€˜but for' test. In the case of Cork v Kirby Mclean Ltd
(Latimer, 2014, p. 253)the court has ruled that the employeeâ€™s death was caused by the fault of both employee and employer. Remoteness of injury must be pleased. The study of the Privy Council is that a person is only accountable for the consequences that could sensibly have been anticipated. The Privy Council altered this test with the following case ofOverseas Tankship Ltd v Morts Dock & Enginerring Co
. (Latimer, 2014, p. 256). Barack has failed to anticipate that an injury may occur, if the arms broke off, because he hasnâ€™t taken the necessary quality checks before selling to Alfonse son of Theo-Paul. Under The Civil liability Act 2002 NSW
SECT 5B (1) A person is not careless in failing to take safety measures against a risk ofharm
unless: the risk was anticipated, was not important and in the conditions, a sensible person in the personâ€™s position would have taken those safety measures. Under this section Barack as a supplier has failed to anticipate the risk involved in it. SECT 5B (2) in determining whether a sensible person would have taken safety measures against a risk ofharm
, the court is to consider the following; the likelihood of harm, gravity of harm, burned of taking safety measures to prevent the harm. Conclusion:
By applying the judgements from the above cases Barack has failed the basic fundamentals A. Duty of care B. A breach of the duty of care C. Damages, he is supposed to take while buying the ladders from Joe a passing wholesale vendor, whose details are recorded by Barack and selling the ladder to Alfonse without checking its quality standards and strength. Theo-Paul has used the ladder accordingly to the instructions. The manufacturing defect has caused both the spreader arms broke off the frame of the ladder due to which Paul has suffered a serious brain injury. So Theo-Paul can sue Barack for tort of negligence. 2.
Australian Consumer Law (ACL) commenced on 1 January 2011 National Consumer Law which applies to all the states and territories. The ACL replaced provisions in 20 national, State and Territory consumer laws. The ACL is administered and enforced by the Australian Competition and Consumer Commission (ACCC). (australian consumer law, 2011) Application of Law:
The-Paul can take action under Australian Consumer Law Pt 3-5
against Barack. Under this law manufacture is liable for goods with safety defects if, an individual is hurt or died because of the safety defect (ACL s 138) (Latimer, 2014, p. 528). A â€˜manufactureâ€™ is more than a producer of goods. It includes assembler, brander, and importer (ACL s 7) (Latimer, 2014, p. 529)in this case Barack is brander because he has purchased the ladder from an unknown person whom he never met before and it doesnâ€™t have any brand. In addition, a business is said to be manufacture of the goods if it is an own brander. The ACL say that if a manufacture is unidentified after 30 days each supplier which did not respond to the request is said to a manufacture of that good (s147(2)) (Latimer, 2014, p. 529). As Barack doesnâ€™t have the details of Joe, so has is liable for the injury caused to Paul. Safety defective goods:
Goods have a safety defect when â€œtheir safety is not such as a personâ€™s generally are entitled to expectâ€(s 9: safety defective goods) (Latimer, 2014, p. 529). Possible safety defects in the goods include design defects, manufacturing defects, and instructions defects
. Here Paul has used the ladder as per the instructions, even though, the spreader arms of the ladder has come off, so the ladder has a manufacturing defect. Manufacturerâ€™s liability for defective goods:
ACL Pt 3-5 imposes liability for supplying defective goods to an individual. Legal action for safety of defective goods must be started by the person injured within three years of being aware of loss, the safety defect and the identity of the manufacture (ACL s 143(1)) Consumer guarantee that the goods are of acceptable quality (ACL s 54)
(Latimer, 2014, p. 503) under this the supplier including the hirers and lessors must guarantee that the goods are of standard quality, if not the end user can sue the supplier and/ or the manufacturer. So Barack has failed to test the quality standards of the ladder before purchasing from Joe an unknown person and before selling to Alfonse. Conclusion:
Under the Australian Consumer Law Pt 3-5 Theo-Paul can take action against Barack as the ladder he sold was defective good. Even though he is not the manufacture he is liable for the good, as the identity of Joe is unknown. Barack has a 30 day time to find the Manufacture (Joe), which is very less. So this makes Barack as a manufacture and Paul can initiate action against Barack for the injury caused to him. 3.
The remedy in tort is a grant of Damages, to provide compensation for the harm suffered by the applicant. Damages award in tort to put the applicant in the position in which applicant would have been if the negligence had not been committed. It includes as allowance for expenditure incurred in relying on defendant behaviour. The damages in personal injury involve compensation for pecuniary (monetary) and non pecuniary loss. In case Theo-Paul has suffered both pecuniary and non pecuniary loss. At the time of the injury he was 45years old and was earning $400,000 per year and was an active sportsman. Due to the injury he suffers extreme migraine unless he is sedated. Under the Civil Liability Act 2002 of NSW
in reply to â€œtrotâ€ limit the compensation by restricting awards for damages for personal injuries caused by negligence. This act provides a statutory cap for damages for non economic loss in NSW is $551,500 (s 17) for his pain, suffering of amenities of life. So Paul can claim up to $551,500 under this act for his non economic loss. For his loss of earnings
under the Civil Liability Act 2002 of NSW s12(2). This section applies to award damages for past and economics loss due to loss of earnings
or the deprivation or impairment of earning capacity â€œIn the case of any suchaward
, the court is to disregard the amount (if any) by which theclaimant
â€™s gross weekly earnings would (but for theinjury
or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of theaward
.â€ Paul can get a maximum of 3X the average weekly earnings. Under Competition and Consumer Act 2010 (Cth) pt VIB
(s 87M) (Australasian Legal Information Institute, 2010) the maximum amount of damage for non economic loss is during the year in which this Part commences (b)during a later year--the amount worked out. s 87U Personal injury damages for loss of earning capacity. A court must disregard the amount by which theplaintiff
's gross weekly earnings during anyquarter
would (but for thepersonal injury
or death in question) have exceeded. s 87V the average weekly earnings for the quarter means the amount published by the Australian Statistician (Australasian Legal Information Institute, 2010) Conclusion
: According to the above law Paul can claim up to $551,500 for his non economic loss, even though he is earning a $400,000 annually. It is an act of negligence, not intentional. 4.
The reasons for the Australian caps on damage are because of oneâ€™s negligence and it is not an intentional. The claims for personal injuries under the common law of negligence have now been limited by the Civil Liability Act which is passed in 2002-03. The damages awarded for personal injuries were becoming too high. Damages were continuing to rise, so was the cost of liability insurance. The Civil liability Act promotes personal responsibility, that you are responsible for your own acts of negligence. In the Ipp report submitted by the federal government, it has recommended a single statute with a name like Civil Liability Act which would apply to any claims for damages for personal or death caused by negligence. The effect of Civil Liability Act is showing a change drop in the number of new cases and insurance premiums. Bibliography
(2010). Retrieved may 22, 2015, from Australasian Legal Information Institute: http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/ australian consumer law
. (2011, January). Retrieved May 2015, from http://consumerlaw.gov.au/content/Content.aspx?doc=fact_sheets/FAQ.htm
Latimer, P. (2014). Australian business law.
CCH Australia Limited.